Pejman Nassiri v. Jefferson Sessions, III
706 F. App'x 201
| 5th Cir. | 2017Background
- Petitioner Pejman Nassiri, an Iranian national, challenged a 2005 removal order and sought reconsideration/reopening in 2016 after learning (he asserts) the removal was unlawful.
- The Board of Immigration Appeals (BIA) dismissed his statutory motion to reconsider as untimely and declined to reopen/reconsider sua sponte.
- Nassiri argued equitable tolling of the filing period based on (1) a defective Notice to Appear (NTA) that omitted his date of admission and (2) delayed discovery of an intervening BIA decision undermining the statutory basis for his removal.
- He also argued the defective NTA and purported ultra vires grounds for removal deprived the immigration judge (IJ) of jurisdiction and that the BIA abused its discretion by issuing a single-member summary affirmance.
- The Fifth Circuit sua sponte dismissed some claims for lack of administrative exhaustion and reviewed others on the merits where jurisdiction existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA should have exercised sua sponte reconsideration/reopening | BIA should have reopened sua sponte given equities and changed precedent | BIA has discretion to refuse sua sponte relief | Dismissed for lack of jurisdiction to review BIA’s refusal to exercise sua sponte power |
| Whether statutory motion to reconsider/reopen was timely via equitable tolling | Filing periods tolled due to defective NTA omission and delayed discovery; counsel enrolled Jan 29, 2016 and filed Apr 14, 2016 | Filing was untimely; omission of admission date is not misfeasance; petitioner failed to plead a specific discovery timeline | Denied: petitioner failed to show legal basis for tolling or supply requisite discovery dates to make motion timely |
| Whether defective NTA and related hearing violated due process / deprived IJ of jurisdiction | Omitted admission date in NTA rendered proceedings defective and deprived IJ of jurisdiction | Claims were not administratively exhausted on appeal to BIA | Dismissed for lack of jurisdiction due to failure to exhaust administrative remedies |
| Whether BIA abused discretion by single-member summary affirmance | Single-member summary affirmance was improper and abusive | Summary affirmance is permissible; no abuse shown | Rejected: no merit to claim that BIA abused discretion by single-member summary affirmance |
Key Cases Cited
- Wang v. Ashcroft, 260 F.3d 448 (5th Cir.) (failure to exhaust administrative remedies is a jurisdictional bar)
- Eduard v. Ashcroft, 379 F.3d 182 (5th Cir.) (administrative-exhaustion principles and review limits)
- Lopez-Dubon v. Holder, 609 F.3d 642 (5th Cir.) (exhaustion requirements in immigration appeals)
- Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir.) (distinguishing statutory reopening from regulatory sua sponte reopening)
- Gonzalez-Cantu v. Sessions, 866 F.3d 302 (5th Cir.) (no jurisdiction to review BIA’s refusal to exercise sua sponte reopening)
- Mata v. Lynch, 135 S. Ct. 2150 (Supreme Court) (jurisdiction to review denial of statutory motions to reopen/reconsider even when denial is based on untimeliness)